Plagiarism in the Supreme Court? - Former Chief Justice speaks

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With Due Respect
Plagiarism in the Supreme Court?

By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 23:33:00 08/07/2010

THE SUPREME Court is once more embattled. This time, the battle relates not just to the wisdom of its decision. This time, it seeps to the very ability and integrity of the Court to write its judgments. A group of litigants is accusing it of plagiarism and of misusing the allegedly plagiarized materials to support the opposite of what the plagiarized items were intended to uphold.

Short backgrounder. On April 28, 2010, the Supreme Court en banc, in “Vinuya vs Romulo,” dismissed the petition of more than 70 comfort women belonging to the “Malaya Lolas Organization.” It refused to compel the respondent government officials to secure from Japan an “apology and other forms of reparations” for the rape and other abuses committed by Japanese soldiers against them during World War II.

Essentially, the Court ruled that the power to conduct foreign relations is an executive prerogative that the Court could not interfere with. Since the Treaty of Peace with Japan already settled all war claims of the Philippines, the Court said it could not attribute grave abuse to the respondent officials for refusing to take up the cudgels for the comfort women at this late stage.

Instead of just challenging the merits of the decision in their motion for reconsideration and supplemental motion for reconsideration, the comfort women’s lawyers—Harry Roque and Romel Bagares—also accused the Court of “wholly lift(ing), without proper attribution, from at least three sources.”

They identified the writers and the plagiarized articles as: (1) Evan J. Criddle and Evan Fox-Decent from their article, “A Fiduciary Theory of Jus Cogens” published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, “Enforcing Erga Omnes Obligations in International Law” published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, “Breaking the Silence: On Rape as an International Crime” published in the Case Western Reserve Journal of International Law in 2006.

International dimension. Before the Court could rule on these motions, Dr. Mark Ellis—one of the three authors—sent an e-mail to the justices, dated July 23, saying: “In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28 of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross-purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.” In a blog in Opinio Juris, Criddle found the alleged plagiarism and contrary conclusion “most troubling.”

To stress the international dimension of his intervention, Ellis signed his letter in his capacity as “executive director” of the International Bar Association based in London. IBA is the largest lawyers’ organization in the world.

Soon enough, calls for discipline against the decision writer and the nine justices who concurred in full with the decision (the rest concurred only in part, or only “in the result”) erupted. The Court referred the complaint for investigation and recommendation to the newly created Committee on Ethics and Ethical Standards, composed of Chief Justice Renato C. Corona, chairman; Justice Teresita J. Leonardo de Castro, working vice chair, Justices Roberto A. Abad, Jose P. Perez and Jose C. Mendoza, members. Retired Justice Jose C. Vitug was named a non-voting observer-consultant.

Delicate questions. While the Court acted on the complaint with commendable speed, it still faces major dilemmas because all the Ethics Committee members concurred unqualifiedly in the decision penned by Justice Mariano C. del Castillo. Pages 33 and 34 of the decision show that nine magistrates concurred fully with the ponente; namely, all the five members of the Ethics Committee, plus Justices Presbitero J. Velasco Jr., Arturo D. Brion, Lucas P. Bersamin and Martin S. Villarama Jr.

Five other magistrates scribbled their votes on the signature pages of the decision, as follows: then Chief Justice Reynato S. Puno, “In the result”; Justice Antonio T. Carpio, “I concur on the ground that petitioners’ claims are barred by the Peace Treaty between RP and Japan”; while Justice Antonio Eduardo B. Nachura filed a short separate opinion concurring “in the result on strictly procedural grounds,” to which Justices Conchita Carpio Morales and Diosdado M. Peralta “joined.”

On July 22, Justice Del Castillo wrote his colleagues, saying “(t)here was every intention to attribute all sources whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own… This case has not attained finality; in fact, it is pending resolution of the petitioners’ motion for reconsideration. As such it is still within the power of the Court to reverse or amend its decision…” Last Tuesday, Roque and Bagares were asked to comment on this letter.

The case raises novel questions, like: As it applies to judicial decisions, what constitutes plagiarism? What is the penalty for its commission? Who, if any, should be held responsible? May those who fully concurred with the decision investigate the matter as members of the Ethics Committee?

Having caught national and international attention, the delicate issue of plagiarism as it relates to decision-making deserves prudent, fair and speedy resolution.

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Comments are welcome at chiefjusticepanganiban@hotmail.com